Monday, June 18, 2012

Sticks and Stones

Monroe County Legislators made a mistake last week in enacting a "cyberbullying" bill that appears clearly unconstitutional.   It's surprising they didn't recognize this before embarassing themselves.

The mistake was in criminalizing certain kinds of communications.   Our legal consultant, Algonquin Bonapart, Esq., explains it this way:   "This represents an attempted restraint on speech based on its content.   The textbook paradigm of legislation violating the First Amendment's speech clause.   First-year law school stuff."

This law will be overturned when challenged.   The legislators should have had legal advice when they considered it.   A Republican-majority body, like our county legislature, should stand against any restrictions on free speech.   In the marketplace of ideas, we win.   Which is why the Left often uses any trick available to suppress speech from our side -- from crying "racism" over something they disagree with, to intimidating sponsors of conservative radio hosts.   Republicans and conservatives shouldn't be creating precedents for suppressing speech.

You can sue for defamation, but in America you can't go to jail for it.   County legislators might have recalled the advice most of us received as children, when taunted by other kids:   Sticks and stones can break my bones, but names can never hurt me.

Names can never hurt us.   But compromises on free speech can.


Rottenchester said...

There are laws against harassment on the books today that have survived First Amendment challenges. People were harassed via phone, mail and in person long before the invention of the Internet, and laws were passed to allow those being harassed a legal remedy. So this is probably another case of a legislative body passing an unnecessary, unconstitutional law just to get a few headlines.

That said, someone as careful as you must have just been having a bad day because you made a pretty basic mistake when you compared "the left" calling something "racism", or boycotting a radio host's sponsors, to the legislative suppression of speech embodied in this law.

When some group exercises their First Amendment right to criticize the content of someone else's speech, or they use their constitutional rights to organize a boycott against some entity, they're exercising constitutionally protected rights appropriately. It's completely different for, say, A Million Moms to advocate a boycott of JCPenney because they hired Ellen DeGeneres, than it is for the Monroe County Leg to say that JCPenney can't use Ellen DeGeneres in an ad.

It seems like you're conflating the two.

Just to drive the example home: you may disagree with the content of what I say, but I'm within my rights to say that nobody should give a penny to One Million Moms because their hatred of homosexuals is despicable. And if I organize a group with the aim of stopping any corporation from listening to One Million Moms, and my group convinces corporations to ignore O.M.M., and O.M.M. goes out of business because they're totally ineffective, then O.M.M. wasn't "suppressed". They lost the argument. Too bad for them, and for Rush, who lost a bunch of sponsors recently, but they're not victims of "suppression" in the way you used the word.

Anonymous said...

Oh, please. Saying the 'Pubs stand for any kind of freedom is like saying the Dems stand for the elimination of taxes.

Philbrick said...


If that paragraph left you thinking I was comparing governmental suppression of speech to the examples of private action I cited, then I did not write with sufficient clarity.

Here's an outline of the point I was making:

1. Republicans/conservatives should not be creating precedents for governmental suppression of any kind of speech.

2. Because constituencies on the Left would like to suppress the messages of people on the right when they can.

3. We can see that in some examples of private action by Left constituencies to silence voices on the right, such as these: [examples I cited].

4. So we don't want precedents for government stopping speech on account of its content. Because then, if those Left constituencies find themselves in power, they may build on precedents like that to create conditions whereby government can suppress political speech.

That's it. I was citing the reflexive cries of "racism" and sponsor boycotts as examples showing that some people want to shut down messages from the right. I wasn't equating these private actions with government censorchip.

People have the right to use those private means to advance their cause.

I should have added, as another example to make the point, the resentment of some constituencies of the Left toward media outlets, like Fox, not controlled by people who think like them.

On your first point, I checked with my go-to lawyer who says that indeed there are laws against harrassment that pass constitutional muster, but what they criminalize are actions, not content of communications. So, in his example, someone can run afoul of anti-stalking laws by harrassing a person with 50 phone calls every night. It's the act of making the 50 calls, not what's said during any of them, that triggers the criminal sanction.

Rottenchester said...

Thanks for the clarification.

I guess where we disagree, then, is that I don't see the boycotting that you're thinking might seep into our laws as the province of "the left". I see it as a widely used tactic by lots of different political groups.

The Limbaugh boycott is one example of "the left" having some success at it, but there are plenty of groups on "the right" doing very much the same thing, and having success. The example I used (One Million Moms) is a group that makes it their whole business to try to boycott corporate sponsors who get anywhere near support of gay rights. Up until very recently, they were quite successful. There's a long history of this kind of thing on the right. The Moral Majority advocated censorship for years, and other Christian right organizations still do. Rick Santorum, who got quite a few votes on "the right", advocated Internet censorship. I can go on, but you get my point.

Anonymous said...

Philbrick your larger point is correct. It is unconstitutional for government to restrict speech. Nobody should vote to do it, whether Republican or Democrat. Hats off to the 5 legislators who understood that and voted "no" last week. By the way, who are they? Let's give them a nod.

Unfortunately you went off an an unfortunate tangent, for which Rotten correctly called you out, when you compare the actions of private citizens to suppression of speech by government. Whether right or wrong, those individuals who try to shout you down, shut you up, use unfair tactics etc are merely exercising their own free speech. As infuriating as it might be, it is not unconstitutional.

You were on firmer ground before you tried to give Republicans the higher ground. No political party has dibs on the First Amendment. It is for everybody, and all of us have an equal stake in defending it.

MrMcClellan said...

Admittedly, I didn't compare the Albany County cyberbullying law word for word with Monroe County's law, but this author (although perhaps not of the caliber of Laurence Tribe) makes a good argument that a similar law is likely constitutional